Tuesday, January 15, 2013

Firearms Derangement Syndrome

Believe it or not, I’ve always tried to be rational
about gun control, even after the Sandy Hill Elementary School shootings and
the rising homicide rate here in Chicago. Yes, it’s true, I’ve tried to outline
the types of firearms regulation that remain viable following two recent
Supreme Court cases striking down federal and municipal handgun bans (here,
here
and here);
and I’ve raised
the not unreasonable question whether the Court’s decision to strike down
Chicago’s gun ban in 2010 contributed in some way to the dramatic increase in
murders here, most of which have been committed with firearms.

Nonetheless, I’m not one who dogmatically supports
any law or regulation that happens to fall under the general rubric of gun
control. For one thing, I think the Supreme Court’s biggest mistake in its
landmark gun control cases was that it missed the opportunity to strike a
balance between the language of the Second Amendment (it does, after all, explicitly
state that “the right of the people to keep and bear Arms, shall not be
infringed”), and the needs of individual states and individual communities to
protect their citizens from violent crime. The Court could have found, as it
did in District of
Columbia v. Heller, 554 U.S. 570 (2008), that the Second
Amendment created an individual right to own certain types of firearms as
against the federal government;
but that that right did not
apply to state and municipal governments. In fact, the Heller opinion hinted at that result in Footnote 23:

With respect to
Cruikshank’s [United States v. Cruikshank, 92 U.S. 542 (1875)] continuing validity on
incorporation [of the Second Amendment; i.e., that the Amendment was made
applicable to the states via the Fourteenth Amendment’s due process clause], a
question not presented by this case, we note that Cruikshank also said that the
First
Amendment did not apply against the States and did not engage in the
sort of Fourteenth
Amendment inquiry required by our later cases. Our later decisions
in Presser v. Illinois, 116 U. S.
252, 265 (1886) and Miller v. Texas,
153 U. S.
535, 538 (1894) , reaffirmed that
the Second
Amendmentapplies only to the Federal Government.

In any event, I tend to think the Supreme Court may
have been correct in Heller,
but wrong in McDonald. If the
Court had ruled the way I see the matter, the theoretically overbearing federal
government would be limited (not powerless, but limited) in its ability to
regulate firearms, but state and local governments would be free to craft laws
that they, in their judgment, believe are in the best interest of their
citizens.

But as we know, that’s not what happened. Instead,
the Court ruled that the Second Amendment right to keep and bear arms applies
equally to the federal government and to state and municipal governments. In
other words, the NRA and its fellow travelers won. They got the interpretation
of the Second Amendment they argued for: An individual right to keep and carry
certain types of firearms, including handguns, subject to certain reasonable
limitations the court outlined in Heller.

So, now the federal and state governments are on
equal footing. And, in the aftermath of yet another mass shooting (and the
increasing murder rate in some cities, like Chicago), federal and state
authorities are asking the questions they should be asking: What can they do,
consistent with the limitations spelled out in Heller and McDonald, to protect people not from law-abiding firearms owners, but from
criminals bent on maiming and killing innocent people.

Again, the question they’re asking is: What can
they do within the parameters of Heller
and McDonald. The cases the NRA
brought and won, which gave us the interpretation of the Second Amendment the
NRA wanted.

Of course, I’d expect gun rights advocates to keep
a watchful eye on federal, state and local governments to make sure they’re
cleaving to the Supreme Court’s interpretation of the Second Amendment and the
kinds of reasonable regulations the Supreme Court expressly allowed in those
cases. What I wouldn’t expect is the full-scale freakout we’re seeing from many
of those same gun rights advocates.

A Texas lawmaker says he plans to
file the Firearms Protection Act, which would make any federal laws that may
be passed by Congress or imposed by Presidential order which would ban or
restrict ownership of semi-automatic firearms or limit the size of gun
magazines illegal in the state,
1200 WOAI news reports.

…

“If a federal
official comes into the state of Texas to enforce the federal executive order,
that person is subject to criminal prosecution,” Toth told 1200 WOAI’s Joe Pags Tuesday.

In Toth’s words, “we
want to do everything we can, especially as pertains to the Supremacy Clause.
The Supremacy Clause gives the federal government — it basically trumps state
law — which is wrong. And we want to do everything we can to undermine that.”

Seriously. Not happy with winning two Supreme Court
cases that define the scope of their precious constitutional right to keep and
bear arms, folks like Rep. Toth want to eviscerate the Supremacy Clause – of
the same Constitution – to prevent
the federal government from doing what the Supreme Court said it could do. In
the very cases Rep. Toth’s side won.

See, this is why proponents of gun control have a
hard time taking the gun cadre seriously. When you have state representatives
who would shred the Constitution in order to protect firearms from any sort of reasonable regulation whatsoever, it looks
like you’re not really interested in vindicating constitutional principles. In
fact, it makes you look a little deranged.